This is a recent court ruling. DHS can't reevaluate the LC already approved BY DOL.
DHS Overstepped Its Authority by Denying Employer's Request to Hire Foreign Workers
The U.S. Court of Appeals for the Seventh Circuit has reversed a district court ruling that denied an employer's petition for classification of two alien workers as eligible for "employer-based immigration." The petition had been rejected by U.S. Citizen and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS) [ Hoosier Care, Inc. v. Michael Chertoff, Secretary of Homeland Security, et al. , CA7, Dkt. No. 06-3562, 4/11/2007].
The Facts
The employer, Hoosier Care, a residential care facility for individuals with disabilities, sought to hire two Filipino citizens as "developmental disability specialists." One applicant held a bachelor's degree in agriculture and the other in maritime transportation. Hoosier Care filed an application for alien labor certification with the Department of Labor (DOL), stating that the minimum educational, training and/or experience requirement for the job was a bachelor's degree in any field. Hoosier Care submitted letters of support by staff members and outside experts to back up its contention that college graduates were better suited to working with the residents of the facility, regardless of their field of study. The DOL granted Hoosier Care's request for certification.
Hoosier Care then petitioned the DHS for eligibility for "employer-based" immigration." The DHS rejected the petition. Hoosier Care challenged the DHS's ruling and, after losing its lawsuit at the district court level, filed an appeal.
The Law
8 USCS 1182(a)(5)(A)(i) forbids an alien to enter the U.S. "for the purpose of performing skilled or unskilled labor" unless the Department of Labor (DOL) certifies that there is a shortage of American workers able and willing to perform the labor in question and that allowing an alien to do the job will not harm American workers.
8 USCS 1153(b)(3)(A)(i) provides that the DHS is responsible for determining whether, in the case of skilled labor, a specific alien is "capable ... of performing skilled labor (requiring at least 2 years training or experience)." 8 CFR 204.5(l)(2) , which is a DHS regulation, states that for purposes of 8 USCS 1153(b)(3)(A)(i) , the DHS may consider "relevant post-secondary education."
In the case at issue, the DHS Administrative Appeals office maintained that the two alien workers in question did not possess "relevant post-secondary education" because neither agriculture nor transportation is a field of knowledge that relates to the care of severely mentally retarded individuals. The DHS office suggested that "relevant post-secondary education" would be majors in such fields as psychology and education.
The Ruling
The Court of Appeals said that it could not determine whether the DHS's interpretation of "relevant post-secondary education" was unreasonable. However, it noted that the DHS, in rejecting the petition, had failed to consider 8 CFR 204.5(l)(4) , which is another of the DHS's own regulations. Under 8 CFR 204.5(l)(4) , "the determination of whether a worker is a skilled or other worker will be based on the requirements of training and/or experience placed on the job by the prospective employer, as certified by the Department of Labor" (not the DHS). In other words, the determination of what kind of training is required to classify an alien as a "skilled" worker is made by the DOL upon consideration of the submission by the alien's prospective employer. The DHS's role in this process is to determine whether the alien whom the employer wants to hire satisfies those requirements — that is, whether he or she has the training that the DOL believes is required for the job. Thus, the DOL determines whether a college education, regardless of major, qualifies an alien as a skilled worker for Hoosier Care, and the DHS then determines whether in fact each of the two aliens whom Hoosier Care wants to hire has a bachelor's degree.
The Court of Appeals said that by granting the application and issuing the certification, the DOL accepted, presumably after reviewing the application, Hoosier Care's specification for the job requirements. Once the DOL certifies an employer's job requirements, the DHS does not have the authority to re-evaluate those job requirements. The DHS's role is solely limited to determining if the two alien workers held bachelor's degrees. Because the DHS had performed tasks that are the responsibility of the DOL, the Court of Appeals reversed the district court ruling and returned the case to the DHS for further proceedings. The Court of Appeals noted that it would require an act of Congress changing the present regulations to extend authority to the DHS to determine the suitability of job requirements specified in an alien labor certification.
The Court of Appeals also noted that the purpose of the DOL certification process is to ensure that American employers do not establish job requirements that would exclude American workers from applying for the position, simply because the employer desired to hire foreign workers at a lower wage rate. The court believed that by accepting Hoosier Care's application, the DOL was saying that it was satisfied that Hoosier Care had not manipulated the job requirements to exclude American workers from applying for the job.
I still don't know when the data entry person will finally get down to updating it and it ultimately moves to certified.